Standing Committee B

(Morning)

[Derek Conway in the Chair]

Schedule 3

Regulated Activity

Question proposed, That this schedule, as amended, be the Third schedule to the Bill.

Judy Mallaber: I want briefly to explore paragraph 2(1)(e), on regulated activities, with the Minister. It is aimed primarily at regulating those who moderate chat rooms or online discussions forums and is very welcome. However, it refers to
“moderating a public electronic interactive communication service which is likely to be used...by children.”
Before amendments have to be tabled on Report, will the Minister consider whether that provision could apply to electronic interactive communication services that are used to locate children and thus interact with them?
I raised this issue on Second Reading, because an increasing and frightening range of electronic services are being used to track children. Allegedly, such services are meant to promote safety, but there are huge dangers of potential abuse, despite the current voluntary code on who should have access to services and other items. The code is inadequate, and there are too many examples of it not having been followed. I have called for a licensing system for the industry in a Bill that happens to have been sponsored by three members of the Committee—my hon. Friend the Member for Colne Valley (Kali Mountford), the hon. Member for Mid-Dorset and North Poole (Annette Brooke) and my hon. Friend the Member for Wakefield (Mary Creagh). I have also had support from within the industry.
Under the code, someone who is being tracked is meant to give their consent. In that sense, the system is interactive, as set out in paragraph 2(1)(e). Often, however, the electronic interaction is with the child and it might occur with or without their knowledge. That might be in a situation in which they can be put in danger, but it is extremely odd to think of a four-year-old, for example, giving informed consent. That raises the issue of how we can be sure who is doing the tracking and how it is done. We therefore need a regulatory system.
Under paragraph 2(1)(e), chat room moderators will rightly be regulated because of their access to sensitive information and communication channels with children, as well as the need to regulate who operates such services and how. However, we need to control location services that provide electronic access to children. Some services include information about children’s phone numbers and homes, and the tasks performed by providers of such services are very similar to those performed by chat room moderators.
Will the Minister consider whether the issue can be covered by paragraph 2(1)(e)? If not, can we table an amendment to secure at least one element of the regulatory system and the protection that we need from a mushrooming, scary industry that is using the latest electronic communications technology and which falls right within the scope of our efforts in the Bill to protect vulnerable children? I am happy to talk further to the Minister about this issue before Report, but I ask him now to see whether it could be covered. If not, perhaps we could discuss whether an amendment might be appropriate.

Annette Brooke: I support the comments of the hon. Member for Amber Valley (Judy Mallaber), but I wonder whether I could take a few points a bit further by writing to the Minister over the recess. I am a member of the Home Secretary’s task force on child protection on the internet, and various concerns were raised at our meeting about 10 days ago. However, it was far too difficult to table amendments on the issue, so I should just like to ask the Minister whether he will be receptive and provide me with some reassurance that the protection that we need is in the Bill.

Parmjit Dhanda: It is good to have you back in the Chair, Mr. Conway. I appreciate the comments of my hon. Friend the Member for Amber Valley, who raised this issue on Second Reading, and I thank her for giving me advance notice of this debate and a copy of her ten-minute Bill, which made for interesting reading.
I should be happy to read the letter from the hon. Member for Mid-Dorset and North Poole. I should also be happy to meet my hon. Friend, who rightly suggests that this area has seen a great deal of change over a short time. Before making any changes to the Bill, I would like to satisfy myself on the level of interaction. The Bill tackles situations in which there is activity, correspondence and a strong level of interaction between a child and another child or someone who could be posing as one. I would want to take a closer look at the issue, but I should be happy to meet her and have that discussion between now and the Report stage, and even to read correspondence over the recess.
We have had a thorough debate on schedule 3, so I hope that it can be accepted.

Question put and agreed to.

Schedule 3, as amended, agreed to.

Clause 6

Regulated activity providers

Annette Brooke: I beg to move amendment No. 105, in clause 6, page 3, line 23, after ‘services’, insert
‘or through provision of direct payment or individual budgets.’.

Derek Conway: With this it will be convenient to discuss the following amendments: No. 106, in clause 11, page 7, line 3, after ‘check’, insert ‘, or
(b) he makes arrangements through direct payments or individual budgets for another person (P) to permit an individual (B) to engage in a regulated activity and does not—
(i) notify the individual (P) of the existence of the barred lists, and
(ii) offer to undertake an appropriate check on behalf of (P).’.
No. 107, in clause 16, page 10, line 34, after ‘body’, insert—
‘(4) If an offence under sections 9, 10 or 11 is committed by an individual acting on behalf of a body administering the provision of direct payments or individual budgets and is proved to have been committed with the consent or connivance of, or to be attributable to, neglect on the part of a designated responsible officer of the body, he (as well as the body) commits an offence.’.

Annette Brooke: I appreciate that the Minister might find some technical fault with the amendments, so I shall concentrate on the sentiment behind them, which is all-important. The core amendment is amendment No. 106, which has the support of the Parkinson’s Disease Society. It would require a regulated activity provider to inform direct payment recipients about the vetting and barring system, to increase awareness and to offer to undertake an appropriate check on the individual’s behalf.
I shall backtrack and explain how the issue was dealt with in debates in the other place, where I understand it was one of the most controversial issues. My noble Friends argued that people who arranged services for vulnerable recipients of direct payments should be classed as regulated activity providers and wanted everybody involved to be vetted and barred. Probably quite rightly, the Government did not accept that argument taken to its extreme, because it would have placed a huge burden on some 2 million carers in the UK, many of whom are family or friends, perhaps in informal arrangements.
The introduction of the direct payments scheme has brought additional bureaucracy, which has destabilised some long-term caring arrangements with extra requirements. The last thing that amendment No. 106 is attempting to do is destabilise arrangements or make already difficult situations even more difficult; rather, it says that the local authority, which is likely to be the instigator of the direct payments, should tell the recipient that the vetting and barring scheme exists.
We have all acknowledged how complicated the system is, and the recipients of direct payments will not have much time or inclination to work their way through the complexities of the legislation. Amendment No. 106 is intended to say that the local authority should say to the recipient of the direct payments, “This system exists—would like assistance to do any checking on the carers you’re going to use? If you’re quite satisfied, because you’ve known them for 20-odd years, we needn’t take it any further.” In other words, amendment No. 106 is permissive. However, taken together, the amendments would place a duty on the local authority or whomever to alert the recipient to the fact that the new system exists and to give assistance.
If the Minister cannot accept the wording, I hope that he will accept the idea as a compromise that would meet the many concerns that have been raised. The direct payments scheme is becoming a bigger and bigger way to provide care. It is a good way to give people choice, but we want a bit of a safety net when that choice is exercised.

Tim Loughton: Welcome back to the Chair, Mr. Conway. I shall say a few words in support of the amendments. They are sensible. As she has said, it is an area of care for vulnerable people that will grow. The Government rightly support direct payments, and many authorities throughout the country have pushed them.
The amendments also fit in with the Government policy, which we share, of encouraging as many people as possible to stay at home for as long as possible, but only where due and appropriate support is available. It should not be done by continually raising the threshold qualifying them for residential care without providing sufficient support to ensure that they, particularly elderly people, can stay at home without harm or injury.
An increasing number of people will use the direct payments scheme to engage the services of complete strangers to help clean their homes, do their shopping and provide other health-related and personal services. Such people will be put into a strong position of trust and will be able to take advantage of vulnerable people should they be so minded. I am sure that a few people will get into the system in order to take advantage of vulnerable people. Although the vast majority of people offering services through direct payments will not, the Bill is about weeding out bad apples.
It would be an excessive obligation to require every person offering such services to be vetted. It could cause enormous delay for people trying to exercise direct payments, and could lead to a diminution of choice for those trying to engage the services of somebody about whom they might know very little. It is eminently sensible and not too onerous a new obligation on local authorities simply to inform a vulnerable person or their carer—if there is a part-time carer, somebody with a power of attorney or an appropriate person—about the availability of the vetting system, and that they might like to avail themselves of it before taking a firm decision about whom their direct payments will go to.
The amendments would enhance the Bill by providing an extra safeguard for the growing part of the population that belongs to one of the vulnerable groups that we are discussing. The amendments would achieve that without being unduly onerous on local authorities, which after all will be responsible for organising direct payments. A reminder of the service’s availability would therefore not be too great an additional requirement.

Ivan Lewis: I welcome you to the Chair, Mr. Conway. This is the first time that I have spoken in Committee with you in the Chair, and it is good to see you.
This debate is sensible and important. The concepts of direct payments and individual budgets are at the heart of public service reform, empowering individuals with far more control over the services provided for them. It is right to make the point, as did the hon. Member for East Worthing and Shoreham (Tim Loughton), that that will be a significant part of how services are provided in future.
We must strike the right balance. We must ensure that people receive appropriate protection and safeguards without undermining the principle of empowering them by giving them more control and choice. We must not place onerous and undue requirements on them but must give them every assistance and support to ensure that they can employ anybody they choose, either on their own behalf or on behalf of a family friend or relative.
Individual budgets and direct payments will be a greater part of the mainstream care system than they have been. We are running 13 pilots at the moment for individual budgets, and we want to learn from those before we decide whether to roll out individual budgets as a national option or an entitlement for people.
We should be trying to incorporate into those 13 pilots, which are at an early stage, a means to ensure that people understand their right to seek information and make the necessary checks so that they have the maximum protection. During those pilots, I shall certainly look at lessons that can be learned.
On amendment No. 105, we do not believe that it would be appropriate to bring a family member or friend within the definition of a regulated activity provider. We should enable and assist relatives and friends to have the right to make the necessary checks, but it would be inappropriate to oblige them to do so by statute.
On amendment No. 106, we agree that all individuals in receipt of a direct payment should be aware of the vetting and barring scheme, and of their right to engage with it. I shall try to assure hon. Members. In another place, we gave a commitment to introduce a Government amendment placing a duty on local councils to inform direct payment recipients of their right to engage with the new scheme. As hon. Members are aware, we have tabled that amendment, and either I or the Under-Secretary of State for Education and Skills, my hon. Friend the Member for Gloucester (Mr. Dhanda), will speak to it later. That should meet the intention of the amendment tabled by the hon. Members for Mid-Dorset and North Poole and for Brent, East (Sarah Teather).
In addition—I hope that this gives further assurance to the Committee—we are exploring how people who require help in making checks can be assisted by local authorities. We envisage direct payment support services playing a key role in that area. The new scheme will allow all private, domestic employers, including direct payment recipients or their nominees, to check an individual’s status in the scheme online, or via other means. At this stage, we do not think that it is necessary to put a requirement on local councils to do that on an individual’s behalf.
On amendment No. 107 relating to criminal offences—I do not think that the hon. Member for Mid-Dorset and North Poole referred directly to it—the Bill provides already for a number of offences, where appropriate. We are not convinced by the argument for specific or additional offences in respect of direct payments and individual budgets. Therefore, although it is right that we send a strong message about the consequences of breaching the law, to introduce specific offences relating to those issues is neither necessary nor desirable.
I like to think that we have given way significantly since the debate began in the other place. We are all learning as the concept of individual budgets and direct payments develops and we will need to reflect on the lessons learned. However, I think that the Bill just about strikes the right balance between enabling and supporting people to have access to the relevant vetting process and procedures and not placing an inappropriate duty on them. It will give them more freedom and control over the choice of care provided. On that basis, I ask hon. Members not to press their amendments.

Annette Brooke: I thank the Minister for his comforting words. At this stage I shall be happy not to press the amendments. However, although I did not refer specifically to amendment No. 107, I do think that, if we consider the matter important, it needs to have some legal force. For example, in children’s legislation, we had to clearly make a person responsible within a local authority. In this area, we have seen so much buck-passing over the years that, if we consider it to be of importance, we must be clear that there is a designated person who has responsibility.
Amendment No. 107 follows if we accept the logic of amendment No. 106 that we cannot leave direct payments out of the whole scheme. We must bring them in, as the Minister says, in such a way that they are not a burden and do not upset long-standing arrangements, but give the necessary protection. I may revisit the matter, but given the Minister’s comments, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 144, in clause 6, page 3, line 35, after ‘(m)’ insert ‘, (ma)’.—[Mr. Ivan Lewis.]

Clause 6, as amended, ordered to stand part of the Bill.

Clause 7

Barred person not to engage in regulated activity

Maria Miller: I beg to move amendment No. 136, in clause 7, page 4, line 14, leave out subsection (3).
The amendment was originally intended to be read alongside another amendment, which unfortunately was not selected. We have made the Minister’s office aware of that, so that he understands the tenor of this debate. The amendment seeks to remove from the Bill the defence of an individual not knowing that they were barred. We shall seek to add a further amendment to ensure that the clause makes it clear that it is an offence for an individual intentionally to mislead an employer about their barred status.
As we know, the clause creates an offence, punishable by up to five years’ imprisonment, of seeking to engage in regulated activity if barred. It also allows for an individual to put forward a defence of not knowing that they were barred from regulated activity, or that they could not reasonably have been expected to know that they were barred. It is clear from those particular provisions that it is not the Government’s intention to criminalise people who may have been barred but for whatever reason are not aware of that situation.
This debate was had in the other place but we feel that it is important to continue it. The reason why we tabled the amendment is that a broad scope of regulated activities is included in schedule 3, meaning that many thousands of people who are not involved directly in teaching or caring will fall under the schedule’s provisions. It is easy to imagine a situation where an individual who has been barred may not be fully aware of the wide range and extent of the activities that are covered in the barring process.
The vetting procedure would, for the most part, ensure that any of those barred people would not be able to work face-to-face with any vulnerable groups covered in the Bill. As the Minister will be aware, the criminal act includes seeking or offering to engage in activity from which an individual is barred; it is not only working with vulnerable groups or children, but offering or seeking to engage in that employment. It is important that we focus on that point.
As I said, this is an important issue that was debated at length in the other place. Indeed, Lord Adonis provided clarification on Report on the issue. In underlining the need to address it, he set out quite a lot of detail on how the procedure will work, particularly on how barred people will be informed of their status. The system sounds robust, but its complexity—the number of activities that will be subject to monitoring and barring—means that more discussion is needed.
The Minister has assured us on a number of occasions in the debate that there will be a great deal of communication about the Bill with those who are barred and with the employers of those who will be monitored or subject to barring. Our concern is that the Bill’s complexity means that people could put themselves forward for employment without any intention whatever of undertaking a criminal act, and that they will be criminalised and subject to quite severe penalty. The amendment, hand in hand with subsequent amendments that would include a requirement of intention to mislead, is a way of closing what we feel is a loophole in the Bill. I look forward to hearing from the Minister whether any further thought has been given to the issue since the debate in the other place.

Sarah Teather: I heard the context of the hon. Lady’s proposed amendments and I am sympathetic to her sentiments. In his reply, will the Minister explain why the Government decided to draw the clause so broadly that individuals will have to prove that they did not know, rather than prove that they were acting misleadingly? The narrower definition would be much more likely to criminalise the people that the Government are seeking to criminalise, and would avoid catching many others who would not otherwise be caught under the umbrella.
The Government obviously intend to protect vulnerable children and adults rather than criminalise such other people, but there is already plenty of other legislation with that purpose, and it is inappropriate to criminalise those who, as the hon. Lady said, may not understand the full scope of regulated activity. They may understand that they have been barred from one activity but, as we discussed on Tuesday, there is difficulty in defining exactly what is meant by regulated activity and it is perfectly conceivable that a barred person may not appreciate that other forms of activity may bring them into the category that would cause them to be criminalised. Will the Minister therefore say why the Government decided to draw the provision so broadly and whether they might consider an amendment on Report that would narrow the definition?

Parmjit Dhanda: First, it is important to say that I entirely understand what the hon. Member for Basingstoke (Mrs. Miller) said about intentionally misleading. We are at one on that—it is the Government’s intention that it be covered in the Bill. The amendment relates to the clause that will make it a criminal offence for a barred person to engage, seek to engage or offer to engage in a regulated activity. However, it is a defence to prove that the person did not know, and could not reasonably have been expected to know, that he was barred. The amendment would remove the defence.
Paragraph 12 of schedule 2 imposes an obligation on the IBB to take all reasonable steps to notify a person that he is barred. Clearly, it would be unfair to penalise individuals who did not know that they were barred because, despite best efforts, the IBB had been unable to contact them. We hope that such situations are kept to a minimum, but removing that defence would criminalise people unreasonably. We do not seek to do that; hence, we oppose the amendment. However, underlying the amendment is a concern to ensure that barred individuals who apply for work without realising that such work is a regulated activity are not criminalised. That also covers what the hon. Member for Brent, East was trying to say.
I understand hon. Members’ concern, and we do not wish to criminalise individuals unfairly. However, we will ensure that the scheme is well publicised and we will issue guidance to provide further detail about what type of activity will be a regulated activity. Furthermore, when an individual is informed that they are barred, the intention is that the types of activity for which they are barred will be explained to them.

Sarah Teather: Given the difficulty that we had on Tuesday defining exactly what regulated activity was, does not the Minister concede that it would be perfectly logical for somebody else to be unable to appreciate the full extent of the activities from which they may be barred?

Parmjit Dhanda: I take on board that point but, at the same time, the hon. Lady must understand the situation when, for example, a predatory paedophile applies to work in a school. Many people in regulated activities are part of the school work force. That is a simple example of why we need the provision. People may try, perhaps deliberately, to get into those workplaces, and the Bill exists, so that we can err on the side of caution and protect children. That is a relevant part of the issue.

Sarah Teather: The point that the hon. Member for Basingstoke and I made was that, if we redrafted the clause so that it specifically ruled out behaviour that intended to mislead, such as applying in a false name or the Minister’s example, it would capture those individuals but not others who did not intend to act criminally.

Parmjit Dhanda: As I have already said, we do not wish to criminalise those who genuinely do not know or have not been informed, but that is a matter for the police, who will have to consider the evidence. The judgment is best made by them, rather than us, because we would have to come up with a prescriptive list of circumstances, to which the hon. Lady seems to allude. We cannot do that, and it is more effective to rely on the police to do their job. The right thing to do is to err on the side of caution, and on the side of those vulnerable adults and children who need protecting.
We intend that there should be a widespread communications campaign to ensure that all groups affected by the Bill know their new responsibilities and consult with stakeholders on the most appropriate methods for information dissemination. We will use a range of media, including the trade press, websites, newsletters and practitioner workshops and seminars, to get the message across.

Maria Miller: Given that the Minister has written into the Bill an ability for the Government to change what falls into the regulated activity category, does he anticipate ongoing communication with those people who are barred in order to update them on the changes that are made? I understand what he says about the power of advertising and placing advertisements in the trade press, but surely we cannot rely on individuals to read magazines to keep themselves up to date with the process. Does he expect a continuing dialogue with those who are barred, so that they are fully up to date with any changes that the Government make?

Parmjit Dhanda: It is important to do so. It is also important to remember that, when barred individuals apply for a post in a regulated activity area, people will be able to check that they are subject to monitoring and then block their application. I take on board the point that the hon. Member for Basingstoke makes about discouraging people from applying in the first place to work in areas of regulated activity in which they are not entitled to work.

Maria Miller: I am sorry but clearly I did not make myself as clear as I meant to earlier. The issue is about not employers knowing, but the individuals applying for employment knowing. In the circumstances that we are discussing, it is a criminal offence to seek or offer to engage in employment, so it is fundamental that the Government should undertake such communication.
I shall press the Minister a little further. Will the IBB have an obligation to conduct a communications campaign directly with those who are barred? If so, does the Minister have costings for that? Given the 40,000 discretionary judgments that the IBB will undertake, will it have the capacity to undertake what will be a complex process? Would it not be easier to follow the line of argument that we have advanced and remove the provision to make the process much simpler?

Parmjit Dhanda: We should not be looking to create a simpler process if that would put vulnerable adults and children at risk. I already answered the hon. Lady’s question earlier—we intend to inform those who are barred about the activities in which they are and are not entitled to take part. We shall update that as well.

Madeleine Moon: Will the Minister confirm that it will be standard practice for an employer to include in the job description and person specification the fact that the job would be barred to anyone on the barred lists? That would mean that anyone barred who was taking the initial step of applying for a job and seeking the application form would immediately have that information before them and not apply for the job.

Parmjit Dhanda: I cannot say to my hon. Friend that job adverts will say that the job is available only to people who are not barred from working with the relevant groups, any more than happens at the moment in advertisements for head teachers’ and teachers’ jobs. That would be a broad commitment to make, and I cannot make it per se. However, as I said, it is important that we communicate as broadly as we can with everybody on barred lists and all employers and regulated activity providers to ensure that they know what is required of them. We undertake to do that.

Madeleine Moon: May I clarify the point? I was thinking not about the advertising for the job, but the person specification and job description. The advert might well be general, but the information should be provided when the individual rings to say that they are interested and receives details from the employer. Most employers would be vigilant in ensuring that such information was given to anyone who sought to enter their employment.

Parmjit Dhanda: I shall take my hon. Friend’s interesting point on board and consider it. It is important that the barred applicant should know in the first instance that they should not be applying for the job. If we do that in the first place, such situations should not arise.
I hope that I have clarified that the important thing for the Government is to err on the side of caution and protect vulnerable groups. I hope that the hon. Member for Basingstoke sees fit to withdraw her amendment.

Maria Miller: I thank the Minister for his detailed response, although I remain most concerned. We have discussed the role of the IBB in communicating information and the issue of including communication as part of a statutory obligation. That has been dismissed as inappropriate by the Government, although we have received strong assurances that communication will be effective. I was surprised to hear that the Minister feels that the police should decide how this part of the law should be interpreted. Obviously, the police interpret the law, but it is made clear by the Bill, which leaves several other things unclear, that it is a criminal offence to seek to engage, or offer to engage, in the relevant activity.
As we have discussed, there is nothing in the Bill to provide that those who act in that way commit a criminal offence only if they are seeking to mislead an employer. It is purely the act of seeking, or offering, to engage in the activity that constitutes a criminal act. I therefore find it difficult to see how the police could come to any conclusion other than that individuals on the barred list who put themselves forward for employment were doing something they should not, and that action should be taken accordingly. Unless the Minister has other information to share with the Committee, surely that is the intention in the Bill.

Parmjit Dhanda: I should be intrigued to hear from the hon. Lady who she thinks should decide whether an offence has or has not been committed, if it is not the police.

Maria Miller: The reason for the Bill is to define what the House considers to be an offence. It is clear in the Bill that the Government consider it should be an offence for someone who is barred to seek to engage in regulated activity, or offer to do so. If the Minister does not think so, perhaps we should proceed with the amendment, which is widely supported in the Committee. If he does not think that the police should pursue the issues, we can, obviously, amend the clause accordingly. I remain concerned, and we shall perhaps seek to revisit the matter later. In the meantime, perhaps the Minister could think further about the debate that we have had today, and about the degree of concern expressed by hon. Members of different parties. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 ordered to stand part of the Bill.

Clause 8

Person not to engage in regulated activity unless subject to monitoring

Amendment made: No. 145, in clause 8, page 4, line 24, after ‘1(4)’ insert ‘or (5A)’.—[Mr. Dhanda.]

Annette Brooke: I beg to move amendment No. 1, in clause 8, page 4, line 38, at end insert—
‘(c) a Further Education Institution (within the meaning of section 140(3) of the Education Act 2002 (c. 32)).’.

Derek Conway: With this it will be convenient to discuss the following amendments: No. 137, in clause 8, page 4, line 38, at end insert—
‘(c) a residential health institution which is exclusively or partly for the provision of health care or rehabilitation to children.’.
No. 114, in clause 8, page 4, line 38, at end insert—
‘(c) a military training or educational establishment with recruits and trainees under 18.’.

Annette Brooke: There are three amendments in the group, one of which was tabled by Conservative Front-Bench Members, and one of which has joint support. The principle behind them is the same. They deal with the question whether the categories of establishments in which the relevant regulated activity is carried out are broadly enough defined. Of course the issue arises of whether to confine the provisions to cover those most at risk or whether to cast the net further. I think it is important to ensure that we assess the risks in more educational and health institutions than are set out in the Bill.
Amendment No. 1 ties in with amendment No. 2; it could almost be a computer cut-and-paste, as the two amendments together would transfer further education institutions from the provisions on controlled activity to the provisions on regulated activity. I raised the issue on Second Reading in an intervention. I could not see that there should be a distinction between further education establishments and schools, in the matter of ancillary workers, given the 14-to-19 agenda. That encourages the idea, which I support, that children will move between institutions, fully engaging in their new curriculum and studying in different contexts. What on earth will be the difference, as the agenda extends?
My local further education establishment has an enormous array of special educational needs courses. It is the usual route from a special school to the local college and is promoted the most for younger people with special needs. We could argue that it is promoted for vulnerable children more than for others. I do not understand why further education should be included in that section. The response that I received from the Minister for Children and Families on Second Reading was that we should scrutinise such issues in Committee.

Judy Mallaber: It is obviously difficult to know what should and should not be in the Bill. It would be helpful to learn whether the hon. Lady is asking for more areas to be included in regulated activity, given that she has said previously that we might be including too many areas. I realise that it is difficult to strike a balance, but is she asking for more regulation or saying that we already have too many regulated activities?

Annette Brooke: Further education colleges are included in the Bill. At present, they are in the controlled activity area, presumably on the basis that a large number of further education students are over 18 years old. However, we are on the cusp of a change with the 14 to 19 agenda, and children will move interchangeably between colleges and schools, so there should be a regulated activity aspect. For example, the school caretaker or the college site manager should be subject to the same degree of checking and barring as those in regulated activity. A lot of the Bill stems from the Ian Huntley case when a school caretaker was not subject to the same checks as a school teacher. With a controlled activity, the catering people, site managers and others in a further education college will be treated differently from those at a school. I should like the Minister to respond to such matters. I am talking about the difference of treatment of ancillary workers.

Sarah Teather: My hon. Friend may recall that, when I raised the matter in response to the statement that the Secretary of State made on the Audit Commission report, he undertook to look at it. I have not heard from him, so it would be helpful if the Minister could explain why FE has been treated slightly differently.

Annette Brooke: I thank my hon. Friend. I recall clearly the important statement made by the Secretary of State about the Ofsted inspection and how staff were being checked. There was a positive response to her suggestion that, as we move to the 14 to 19 agenda, further education colleges should be treated exactly the same as schools.
The amendment picks up a point that has been made on the Conservative Benches about checks on members of governing bodies. As the Bill is drafted, governors of further education colleges are not checked in the same way as governors of schools. That is why the amendment is necessary. I remind members of the Committee that I am concerned not only about the 14 to 19 agenda but about particularly vulnerable young people with special needs at colleges, and as long as they can still receive funding, there will also be adults with learning disabilities continuing with their courses at further education colleges.
The area that we are discussing is important. I hope that the Minister will make a positive response. Furthermore, I hope that I have made it crystal clear why I suggest this simple movement of category. We must take on board the nature of a further education college in the 21st century. It may have been reasonable in the past to treat further education colleges as the Bill does, but I do not think that it is now.
I support amendment No. 137, but I will leave comments on it to others. We tabled amendmentNo. 114 in response to the excellent speech by thehon. Member for Blackpool, North and Fleetwood (Mrs. Humble) on Second Reading. I asked her whether she would mind if I tabled an amendment, and I spoke to her this morning on the way here to explain what I intended to say. I want to make it clear that I am not trying to steal anyone’s thunder. I was extremely moved by her speech on Second Reading, and it was noticeable that the Minister, in summing up the debate, did not provide any answers in this area, so I very much want it to be considered in detail in Committee.
This is an important area: many families have experienced heartbreaking situations. It is easy to say, “Oh, that involves the Ministry of Defence; it has nothing to do with this,” but the Bill is designed to safeguard vulnerable groups of people and that should include raw recruits, if I can put it that way, who are under 18. I am talking about young people who probably have not left home and may not have experienced the wider world until they entered a military education or training establishment.
The hon. Member for Blackpool, North and Fleetwood spoke as chair of the newly established all-party group on Army deaths. She said:
“I am acutely aware of the pain and anger that arises from the suspicion that those with responsibility for the care of children fail to protect young recruits from sexual abuse.”—[Official Report, 19 June 2006; Vol. 447, c. 1106.]
She gave a particularly telling quotation from the inquiry and review carried out by Nicholas Blake QC on the tragic deaths at Deepcut barracks. As she said, at the close of the review recommendation 12 states:
“Instructors should be vetted for their suitability to work with young people, applying standards that are no less rigorous than those applied to civilian establishments educating or training people under 18.”
As the hon. Lady said, the Bill is intended to provide proper arrangements for vetting people working with children and barring those who are unsuitable, so we are asking why on earth military establishments should be excluded from it. As she also said, child abuse cases in schools and the outcry about staff not being subject to enhanced Criminal Records Bureau checks concern all parents, but the Deepcut and Beyond families point out that problems also exist in military training establishments. I understand that non-commissioned officers and civilian staff are not subject to Criminal Records Bureau disclosures of any kind. That is absolutely shocking. No parent who is passing over their child to be cared for, in a sense—someone else is to take on the parental responsibility—can have any idea that that is the situation, and the issue is not only that checks are not made, but that there are outcomes from that. The hon. Lady went on to give a number of examples from parents who were totally bewildered to discover that the checks were not made. That is absolutely incredible, which is why her speech was so moving.
I dipped a little further into the Deepcut review by Nicholas Blake QC and I picked up another paragraph, with which I shall conclude my remarks on the amendment:
“The Review recommends that the Army applies, as a matter of best practice, no less rigorous checks on the background of its instructors who will supervise recruits and trainees under 18 than would apply in civilian life, particularly in a residential boarding school. Such information could no doubt be accessed through RMP files and personnel records. If the present state of the law proves an obstacle, the Review would recommend that military service is identified as an exception to the position of employers generally.”
Hon. Members can dig that strong recommendation out from the Deepcut review. We have a duty to consider this important exclusion from the Bill and the lack of checks that has resulted in some dreadful outcomes.

Derek Conway: I must draw attention to an error in the amendment paper: the names of the hon. Members for St. Albans (Anne Main) and for Reading, East (Mr. Wilson) have been mistakenly added to amendments Nos. 137 and 114. I apologise for that; their names will be withdrawn. They do not sign blank cheques either.

Tim Loughton: I am sorry that the hon. Member for Mid-Dorset and North Poole feels deflated because she does not have the support of my hon. Friends the Members for St. Albans and for Reading, East, whose names were added to her amendments in error. I shall mention her amendment before talking to amendment No. 137, correctly tabled in my name and that of my hon. Friends.
I have some sympathy with amendment No. 1, which goes to the heart of the problem of when children stop being children—particularly those with learning disabilities for whom special provisions need to be made when they reach 18 but will continue in various educational or support establishments. It is an anomaly why governors of such establishments, which deal with vulnerable people, are not covered by the Bill, whereas governors of other educational institutions are. I am confused about why the explanatory notes do not say what subsections (3), (4) or (5) are intended to achieve and why certain things have been left out of them. I have some sympathy with including additional educational institutions that the hon. Lady mentioned. I am interested in hearing what the Minister has to say in defence of keeping them out.
I have less sympathy with the hon. Lady’s amendment No. 114, although I endorse all her comments about the telling speech made by the hon. Member for Blackpool, North and Fleetwood. Problems with recruits in certain Army barracks are rightly the subject of ongoing investigations. The people responsible for those institutions need to get their act together and provide assurances to the House, those serving and those who may be considering serving in the forces. However, although I am not trying to pre-empt the Minister, the way in which the hon. Lady’s amendment is phrased could cause great confusion. She refers to
“a military training or educational establishment with recruits and trainees under 18”,
but because the Army can recruit from the age of 17, that would presumably mean that an entire training or educational establishment that takes on recruits, including senior Army people who happen to be part of it, would be subject to all the vetting and barring. Under no definition could those recruits be construed as vulnerable adults. Indeed, if they could be, what place would they have performing such a potentially dangerous task as serving in the military?

Kali Mountford: I take the hon. Gentleman’s point, but is it not also the case that the Armed Forces Bill, which is currently proceeding through the House, includes measures for the protection of new recruits to all the armed forces? Those who are under 18 would receive special protection under the provisions of that Bill, so the amendment is not necessary.

Tim Loughton: I am not as familiar with that piece of legislation as the hon. Lady is, but it is greatly reassuring that it includes those checks and balances. They will remove the requirement for the amendment in its current form, which has enormous implications for a raft of military institutions that it is not intended to cover but that happen to take on a small number of recruits at the age of 17. As specific provisions of a dedicated Bill can be applied to them, the hon. Member for Mid-Dorset and North Poole might wish to reconsider the amendment.
Our amendment No. 137 is a probing amendment, which was largely instigated because the explanatory notes are unclear on what is covered under the definitions of “establishments”, in clause 8(5), and the governing bodies of such establishments. I want to give just one example of where an establishment might fall between two stools.
I recently visited a fantastic charity-run establishment in Surrey, a residential establishment looking after young people with severe learning and physical disabilities. Most of them were in wheelchairs and most had profound learning disabilities. The charity, which has been running for many years and is connected with Great Ormond Street, provides a fantastic, unparalleled service to those young people. Alas, there are not enough institutions like that.
That charity is not strictly
“an educational institution which is exclusively or mainly for the provision of full-time education to children”,
as specified by subsection (5)(a), however. By their very nature, those young people could not have full-time education. It is difficult to define a lot of their classroom time as education in the sense that we might understand. A lot of their daytime is spent on more therapeutic, health and other caring services, which is not strictly education. Some fantastic educational work is certainly done, giving skills to those young people in their disadvantaged circumstances, but such an institution would not necessarily fall within the definition in the clause.
I should make it clear that I have nothing but praise for that institution. I have absolutely no reason to think that anything bad goes on there, but there could be similar places, to which certain individuals might be able to find their way and have access to physically and mentally vulnerable children, whom they could then take advantage of. The purpose of amendment No. 137 is to add residential health institutions to the list of establishments in subsection (5), because places such as the one that I have described fall between a healthand therapeutic establishment and an educational establishment.
Amendment No. 137 is not phrased in the best way, and I am sure that the Minister has all sorts of criticisms based on the unintended consequences that it could cause. The point of it, however, is to ask him to reconsider the phrasing of the definition in the clause, because there is no clarification about that in the explanatory notes. Strictly speaking, some institutions would not be covered by that, so some people with bad intentions could gain access to a governing body and not be subject to some of the barring and vetting procedures to which they would be subject under other provisions in the Bill. Will the Minister look again at the definitions or give some reassurance that such establishments are covered by other definitions in the Bill that are not made clear in the clause?

Parmjit Dhanda: The amendments extend the definition of regulated activity in relation to children to governors of further education institutions, military training or educational establishments and residential health institutions.
The Bill provides already that governors of institutions, primarily for the full-time education of children and of maintained nursery schools, must be subject to monitoring and requirements to check. So the bar will apply because the role of governor places the individual in a position of trust and gives them the opportunity of contact with children, and a role in appointing staff with significant contact with children.
Governors of FE institutions delivering full-time education, mainly or exclusively to children, will be subject to those requirements. Furthermore, if a governor of an FE institution teaches or supervises children frequently, or carries out another activity mentioned in paragraph 2(1) of schedule 3, he will be engaging in regulated activity and the same requirements will apply.
Hon. Members must ask themselves whether they want a catch-all system in which, for example, the instructor of an adult pottery class will be barred from running that class because they are on the children’s list. That would be the consequence of the amendment saying that all FE institutions should be treated the same.
I am sympathetic to the argument about the changing role of FE institutions, which is why they are included as controlled activity providers. Principals in FE institutions can put those safeguards in place using common sense and with an awareness of their staff and those in regular contact with children.

Tim Loughton: I am still slightly confused by what the Minister is saying. He has given examples of part-time or voluntary pottery teachers, but subsection (3) refers only to members of a governing body of specific establishments, so I am not sure why his comments are relevant.

Parmjit Dhanda: I am digressing and responding to the hon. Member for Mid-Dorset and North Poole who asked specifically about further education and regulated activity. However, I hope that I explained also the point about governors during my contribution. I hope that I made that clear, but I am happy to reiterate the point if I did not.
Amendment No. 1 would capture governors of all FE institutions, including those working at a working men’s college, for example, who deliver exclusively adult education, and place a duty on some institutions and governors when clearly inappropriate. The Bill should be proportionate. I accept that, as the hon. Lady said, the role of those institutions can change. If the roles change, activities considered regulated and controlled can change also. However, we want to get it right for the situation as it is at the moment.

Anne Main: May I seek clarification? I understood that governors were covered because possibly they have some control over the appointment of staff. Would that view extend to trustees of charities that work with vulnerable children, which will have some control also over the appointment of staff and so have a similar role to such governors? As the Minister mentioned, very few governors teach children, but they do have control over the staffing and running of the school. Very few indulge in teaching, particularly as many are appointed by councils, which they represent. In that case, should we considering a wider pool of the people who have anything to do with appointments for vulnerable children or adults?

Parmjit Dhanda: I am trying to stay as close as I can to the amendments. Some governors do have a role in selecting staff, which is why it is particularly important that they should be involved. The wider roles that the hon. Lady mentioned are covered in other parts of the Bill. I am happy to drop her a note about trustees if she wishes to follow it up.
I move to amendment No. 114, because it is important. The amendment refers to military training establishments, which do not have governing bodies, as they are under the control of a commanding officer. Unlike schools, they deliver training and education to adults, which includes 16 and 17-year-olds serving in the armed forces. Unlike other organisations in which individuals work with 16 and 17-year-olds in the course of the child’s employment, the armed forces will be specifically allowed by the Bill to check the scheme status of those who supervise or train under-18s. I hope that that satisfies some of the legitimate concerns of the hon. Member for Mid-Dorset and North Poole.
Amendment No. 137 would make it mandatory for governors of residential health institutions that provide children’s health care to be subject to monitoring. Not all health institutions have governors, and the governors of those that do might have no contact with children or any role in appointing staff. The Bill already requires governors of residential health institutions who frequently care for, supervise or carry out another activity mentioned in schedule 3(2)(1) to be subject to monitoring. We have carefully considered such settings. I hope that, taking all that into consideration, hon. Members will not press their amendments.

Tim Loughton: Perhaps I might respond on amendment No. 137. I am not entirely convinced by what the Minister said. He did not respond to the specific example that I gave. The amendment is designed not to cover various health institutions that happen to have governors but to expand the definition of an educational establishment that does not offer full-time education, as the clause puts it, “exclusively or mainly”.
The example that I gave might be rare, but there will be such examples. I do not think that the institution involved could be classified—one could certainly make a strong case that it should not be—as being
“exclusively or mainly for the provision of full-time education”.
There appears to be a kind of halfway house, which falls between two stools, that provides education but predominantly provides care, therapy and therapeutic services to severely mentally and physically disabled young people. I do not think that the Bill covers the governors of such institutions, which could be run as small private charities not subject to the normal attention from the local education authority, for example. We need to ensure that people cannot effectively hide in just that sort of institution, obtain a position of responsibility and then abuse.

Parmjit Dhanda: I assure the hon. Gentleman that where the staff have the regular contact with children that he describes, they will be covered under regulated activity.

Tim Loughton: I am grateful and not surprised by that assurance. The Minister is discussing staff, but the clause deals with governors. However, I just wanted to place that thought in his mind. The definitions are broad, and certain institutions that deal with the most vulnerable children will not necessarily be covered.
Both Ministers seem to want to contribute at this point.

Ivan Lewis: This is an important issue in terms of places where vulnerable adults are being cared for on a full-time basis. There might be ambiguity about whether they are in education, care or a combination of the two. The term “governor” is quite important. An educational institution is likely to be run by a board of governors. If it were more of a care-type institution, it is more likely that the equivalent would be charitable trustees or a board of people of that nature. Therefore the term “governors” is generally understood in the context of an organisation predominantly providing education, whereas if it were predominately about care, it would either be a board of management or a group of trustees.

Tim Loughton: I take the Minister’s point but he said “more likely” and “generally”, not exclusively. That leaves a raft of institutions that may not be covered. We need to ensure that all of them are covered. He refers purely to governors. As my hon. Friend the Member for St. Albans said, there are organisations run by other classes of people who are not governors. The reference is only to members of the governing body. Does that include charitable trustees or directors of, for example, a charitable company?
I am a director of a charitable company that is considering taking over the management of an arts education facility, which has been provided as a section 106 gain to the local authority. I wonder—now I think about it—whether I would be covered. I am part of the governing body but I am not a governor. We are not offering mainly, or exclusively, full-time education to children. However, I will be in a position, if we take over management of that facility, to engage members of staff—who may or may not be subject to vetting procedures—who will be opening up the premises and involved with children. That is part of our charitable trust remit. On the basis of what is in this Bill, I am not sure whether I and fellow directors of this charitable company, who are the governing body effectively, will be covered. Therefore, many anomalies are still creeping in—which the Minister is now going to allay.

Parmjit Dhanda: When I write to the hon. Member for St. Albans—I will copy in the hon. Member for East Worthing and Shoreham—I will clarify where it is in the Bill. What I can confirm is that if he is a trustee of a charity and that charity is involved in regulated activity, he too will be covered.

Tim Loughton: Strictly speaking, I am a director of a charitable company limited by guarantee. I am not strictly speaking a trustee. Am I covered on that basis? I am directly covered as a director of a charitable company. The Minister is indicating that he believes so. It has gone from yes to believe so.
The point is that there are many question marks being thrown up. That is not helped by the fact that there is no mention of any of this in the explanatory notes, which are particularly brief in this area. I will not press my amendment to a Division: in any case, it is not the lead amendment. I will defer to the Liberal Democrats on that.
However, we need some extra clarification. It might come in one of the many letters that the Minister has been promising to myself and other Committee members all week—he is going to have a very full list and we are going to have full postbags. Some more thought needs to be given to that and some clarification, if not some amendments, needs to be introduced on Report. Does he wish to intervene before I sit down? Otherwise I will say my piece and hand over to the Liberal Democrats.

Annette Brooke: On further education, I can envisage a situation in which one might, for example, reach40 per cent. as the total proportion of students at an FE college who are under 18, or under 16, or who have special needs or who are adults with learning disabilities. It would easy to reach that 40 per cent. mark. We might say that there should be a majority, but a significant minority would be just as important. Nevertheless, I shall not press the amendment at this stage, although I am not happy about the trigger—the threshold—when one slips from one definition to another.
Amendment No. 114 was always intended to be a probing amendment. It was difficult to find a suitable opportunity to address the point, but I felt that it should be pressed, as we had not received any answers on Second Reading. I make no apology for pressing it, because there was no response to what I thought was an excellent speech on an issue of national significance that should be considered at all possible levels. There will be more and more trust situations—the responsibilities of the trustees of new trust schools may need to be clarified, for instance. So I concur with the hon. Member for East Worthing and Shoreham that notes are required, and I look forward to receiving a copy of the Minister’s letter on the issues. With that, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 146, in clause 8, page 4, line 38, at end insert—
‘( ) A person does not commit an offence under subsection (1) or (2) if he has not attained the age of 16.’.—[Mr. Dhanda.]

Clause 8, as amended, ordered to stand part of the Bill.

Clause 9 ordered to stand part of the Bill.

Clause 10

Use of person not subject to monitoring for regulated activity

Amendment made: No. 147, in clause 10, page 6, line 19, at end insert—
‘( ) A person does not commit an offence under subsection (1) or (2) if B has not attained the age of 16.’.—[Mr. Dhanda.]

Question proposed, That the clause, as amended, stand part of the Bill.

Sarah Teather: I continue to have some concerns about the breadth of clause 10. The sentiments underlying the clause are similar to those underlying clause 9, except that clause 9 relates to people who are barred rather than those subject to monitoring. As drafted, the clause would criminalise mistakes, which I do not believe is the Government’s intention. I suspect that, particularly as the legislation beds down, mistakes will be likely, because there are a number of points of potential confusion. For example, there is the question of whether therapy is a regulated activity. Therapy provided to a child is a regulated activity. However, under clause 14(1)(a), complementary and alternative therapy are listed as areas of exemption from the need to make monitoring checks for vulnerable adults. Meanwhile, therapy is listed as a controlled activity in relation to both children and adults, requiring guidance from the Secretary of State before engagement in it. Clauses 18 to 20 deal with that.
The situation is confused. As I said on a similar matter earlier, the definitions are not clear and I suspect when the legislation first comes into force there will be a high potential for mistakes. Serious misconduct can lead to disciplinary action or dismissal, but there is a question mark over whether it is appropriate to deal with it in legislation. I wonder whether the Government might consider an amendment on Report to narrow the definition so that there would have to be knowledge of monitoring. That would catch fewer people.

Parmjit Dhanda: With your permission, Mr. Conway, I shall leave the discussion on clause 14 until we reach clause 14. As to use of people who are not subject to monitoring, many of the arguments were made in discussing an earlier clause. The Government wish to err on the side of caution and our arguments remain the same.

Clause 10, as amended, ordered to stand part of the Bill.

It being twenty-five minutes past Ten o’clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at One o’clock.